he had a property right in the words "manz Beer", as the complaint shows that the corporation of G. Manz Brewing Company sold the plant wherein the beer was made at Sixth and Clearfield Streets in the City of Philadelphia in 1893, and has never since resumed the making of beer.
A trade-mark or trade-name is a right appurtenant to a business or trade in connection with which it is employed. Its function is to designate the goods as the product of a particular trader and to protect his good will against the sale of another's product as his. United Drug Co. v. Rectanus Co., 248 U.S.. 90, 97, 39 S. Ct. 48, 63 L. Ed. 141; Ph. Schneider Brewing Co. v. Century Distilling Co., 10 Cir., 107 F.2d 699; Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 412-414, 36 S. Ct. 357, 60 L. Ed. 713. Further, any one may use a generic name in connection with a business, the only restriction being one must not use the name so as to work a fraud upon others of the same name; that is no resort to any artifice which would mislead the public as to the identity of the business firm or produce injury to the other. Brown Chemical Co. v. Meyer, 139 U.S. 540, 11 S. Ct. 625, 35 L. Ed. 247; Coats v. Merrick Thread Co., 149 U.S. 562, 13 S. Ct. 966, 37 L. Ed. 847; Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 16 S. Ct. 1002, 41 L. Ed. 118.
Further the use of the name "Manz Beer" by the defendant can in no sense be stated to be an artifice nor to attract trade not belonging to the defendant since there has been an abandonment by the G. Manz Brewing Company of their business since the year 1893 which is a period of almost forty-seven years and there can be no misleading of the public with respect to its use since the defendant in compliance with the statutory requirements of the Commonwealth of Pennsylvania, Act of 1933, P.L. 284, Sec. 2 as amended, 47 P.S. § 104, has its name permanently affixed as manufacturer to every bottle, case, keg or other container of beer thus showing that the "Manz Beer" made is made by the Philadelphia Brewing Company and not the G. Manz Brewing Co.
However, it further seems to me that the plaintiff has no standing in this action by reason of the fact that the complaint shows that if any property right was at any time vested in any one by the use of the term "Manz Beer" it was in the G. Manz Brewing Company, a corporation, and not in the plaintiff and while the plaintiff may have been a stockholder in the corporation it does not give him any right to maintain a bill to enjoin the defendant from using the words "Manz Beer". Edison v. Hawthorne, 3 Cir., 108 F. 839. The plaintiff has pressed a number of cases upon the court; in Minton v. Smith et al., 276 Ill.App. 128, there was no definite abandonment by the plaintiff as she told her employees she was going to resume business; there was likewise no definite abandonment in Ohlbaum v. Correa, 178 App.Div. 838, 166 N.Y.S. 89. In Scheer v. American Ice Company, 32 Misc. 351, 66 N.Y.S. 3, while there was a provision that the plaintiff should not engage in the ice business for a period of five or ten years without the defendant's permission, yet there was in this case a possibility of liability on the plaintiff's part by reason of the fact that the plaintiff's name was in large letters on the defendant's wagon, and correspondence was being had by the defendant on the plaintiff's letterheads. The courts have always been clear to point out that in order to constitute an abandonment of a trade-mark or trade-name there must be not only nonuser but also the intention to abandon. Gold Seal Associates, Inc. v. Gold Seal Associates, Inc., D.C., 56 F.2d 452, Baglin v. Cusenier Co., 221 U.S. 580, 31 S. Ct. 669, 55 L. Ed. 863; Beech-Nut Packing Company v. P. Lorillard Co., 273 U.S. 629, 47 S. Ct. 481, 71 L. Ed. 810. The courts have found abandonment in periods of from two and one-half years as in Tygert-Allen Fertilizer Co. v. J.E. Tygert Co., 191 Pa. 336, 43 A. 224, to twenty-three years in Raymond v. Royal Baking-Powder Company, 7 Cir., 85 F. 231. Here there can be no question of the intention on the part of the G. Manz Brewing Company to abandon the use of the term "Manz Beer" since no effort has been made to manufacture it for a period of more than forty-seven years. In the case of Edison v. Edison Polyform Mfg. Co., 73 N.J.Eq. 136, 67 A. 392, the plaintiff's right to the protection of equity was founded mainly on a contract right with one of the defendants and that this right was personal only to the person to whom it was given.
In the argument counsel for the plaintiff also urged, aside from any matter of unfair competition, that the plaintiff had a property right to be protected from any one using the family name Manz.
Although the custom is universal for male persons to bear the name of their parents, there is nothing in the common law prohibiting a man from taking any name he may choose. Linton v. First National Bank of Kittanning, C.C., 10 F. 894, 897. In Du Boulay v. Du Boulay, L.R. 2 P.C. 430-441, Lord Chelmsford observes, "In this country we do not recognize the absolute right of a person to a particular name to the extent of entitling him to prevent the assumption of that name by a stranger. The right to the exclusive use of a name in connection with a trade or business is familiar to our law; and any person using that name after a relative right of this description has been acquired by another, is considered to have been guilty of a fraud, or at least an invasion to another's right, and renders himself liable to an action, or he may be restrained from the use of the name by an injunction. But the mere assumption of a name which is patronymic of a family by a stranger who had never before been called by that name, whatever cause of annoyance it may be to the family, is a grievance for which our law affords no redress." See also Olin v. Bate, 98 Ill. 53, 38 Am.Rep. 78. Hence the assumption by a stranger of a family name such as here gives the plaintiff no right of redress as such when there is no competition created by the use of the name and its use is not productive of any injury.
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